Kerala High Court
Manuel Benny vs State Of Kerala on 24 February, 2022
Author: Kauser Edappagath
Bench: Kauser Edappagath
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
THURSDAY, THE 24TH DAY OF FEBRUARY 2022 / 5TH PHALGUNA, 1943
CRL.MC NO. 4802 OF 2021
CRIME NO.531/2020 OF Melukkavu Police Station, Kottayam
CC 257/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS
,ERATTUPETTA
PETITIONER/ACCUSED:
MANUEL BENNY,AGED 28 YEARS
S/O BENNY, KALAPPURAYIL HOUSE, ERUMAPRAMATTOM
P.O.KOTTAYAM DISTRICT-686 586.
BY ADVS.SUJITH MATHEW JOSE
EMMANUEL CYRIAC
ELIZEBATH GEORGE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM-682 031.
2 THE SUB INSPECTOR OF POLICE,
MELUKAVU POLICE STATION, KOTTAYAM DISTRICT-686
652.
BY ADDL.DIRECTOR GENERAL OF PROSECUTION
SRI. GRASHIOUS KURIAKOSE
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION
ON 24.02.2022, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
Crl.M.C.No.4802/2021
-:2:-
ORDER
Dated this the 24th day of February, 2022 This Crl.M.C has been filed to quash Annexure A2 final report in Crime No.531/2020 of Melukavu Police Station now pending as C.C.No.257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta.
2. The petitioner is the accused. The crime was registered against him initially for the offences punishable under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and under Section 67B of the Information Technology Act, 2000 (IT Act). The case was suo motu registered based on the information from the Cyber Cell, Kottayam as part of P-Hunt Raid. The allegations in the FIR was that the petitioner downloaded and kept in his mobile phone, child pornographic material for commercial purpose.
3. After completion of the investigation, the offence under Section 15 of the POCSO Act was deleted and final report was filed for the offence under Section 67B of the IT Act. Crl.M.C.No.4802/2021 -:3:- According to the petitioner, even if the entire allegations in the FIR are taken at face value, they do not constitute the offence under Section 67B of the IT Act and it is in these circumstances, this Crl.M.C has been filed under Section 482 of Cr.P.C to quash the proceedings.
4. I have heard Sri. Sujith Mathew Jose, the learned counsel for the petitioner and Sri. Grashious Kuriakose, the learned Additional DGP.
5. A perusal of the final report would show that the only allegation against the petitioner is that he downloaded and enjoyed material depicting children in obscene, indecent and sexually explicit manner from the application called 'Telegram'. In order to attract the offence under Section 67B of the IT Act, the videos or material has to be voluntarily downloaded into any device. In other words, there should be intention on the prat of the petitioner to download the material in order to view it. The definite case of the petitioner is that he did not download any offensive material. Even in Annexure A3 FSL report it is seen that the path of those images is from Android backup and the Crl.M.C.No.4802/2021 -:4:- child pornographic videos were accessed through 'Telegram'. The learned Additional DGP submitted that the contents transmitted in the 'Telegram' can be automatically downloaded in the mobile phone by default. Hence, it cannot be said that the petitioner has intentionally downloaded the material, considering the features of the 'Telegram' App.
Since there is no material so show that the petitioner has browsed or downloaded child pornographic material, the offence under Section 67B of the IT Act is not attracted. Hence, no purpose will be served in proceedings with the matter further. Accordingly, the Crl.M.C is allowed. All further proceedings pursuant to Annexure A2 final report in Crime No.531/2020 of Melukavu Police Station now pending as C.C.No.257/2021 on the files of the Judicial Magistrate of the First Class, Erattupetta stands hereby quashed.
Sd/-
DR. KAUSER EDAPPAGATH
JUDGE
kp True copy
P.A. To Judge
Crl.M.C.No.4802/2021
-:5:-
APPENDIX OF CRL.MC 4802/2021
PETITIONER ANNEXURES
Annexure A1 CERTIFIED COPY OF FIR IN CRIME NO
531/2020 OF MELUKAVU POLICE STATION
Annexure A2 CERTIFIED COPY OF FINAL REPORT IN CRIME
NO 531/2020 OF MELUKAVU POLICE STATION
Annexure A3 CERTIFIED COPY OF THE FSL REPORT IN
CRIME NO 531/2020 OF MELUKAVU POLICE
STATION
Annexure A4 TRUE COPY OF THE 161 STATEMENTS OF THE
WITNESSES